Dhananjaya Singh vs State Of Chhattisgarh

Learned counsel for the petitioner would submit that he does not want to press application (I.A. No.1/2022) for amendment of writ petition, as he has moved another better constituted application.

Learned counsel for both the respondents did not oppose the aforesaid application.

In view of above, I.A. No.1/2022 is dismissed as not pressed.

Heard on I.A. No.2/2022, application for bringing additional facts and submissions on record.

On due consideration, the same is allowed.

This writ petition under Article 226 of the Constitution of India has been preferred by the petitioner against order dated 25.11.2021 passed by the Collector, Durg in Excise case No.52/2021 whereby, the Collector has dismissed the application filed by the petitioner for releasing his motor cycle (Hero Honda Shine) bearing registration No. CG07 AH 0185 (henceforth 'the vehicle in question'), on supurdnama.

Facts of the case, in brief, are that on 11.8.2021, Excise Officer of Excise Circle Bhilai, intercepted the vehicle in question and seized 35.60 litres of country made liquor along with the vehicle in question and registered crime No.48/2021. After completion of investigation, charge sheet against private respondents No. 3 & 4 was filed which is pending as criminal case No.10073/2021, in the Court of Judicial Magistrate, Durg.

It was alleged by the State that the vehicle in question was used for transporting illicit liquor, as such, proceeding under Section 47-A(3) of the Chhattisgarh Excise Act, 1915 (for short 'the Act') was drawn for confiscation of the vehicle in question. Further the Collector, who is authorized under Section 47-A (3) of the Act started the proceedings for confiscation of the vehicle in question. During such confiscation proceedings, application was filed by the petitioner, who is said to be owner of the vehicle in question, to release the same and interim custody of the same was sought for, which was dismissed, therefore, the petitioner has filed the instant petition.

Learned counsel for the petitioner would submit that petitioner is registered owner of the vehicle in question. Though confiscation proceedings have been commenced, but, it does not put any bar to release the vehicle in question on interim custody. He would place reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in (2002) 10 SCC 283 and would submit that applying such principle till confiscation proceedings are completed, the vehicle in question should have been handed over on supurdnama to petitioner. It is further submitted that vehicle in question is standing in open place in police station and no useful purpose would be served by keeping it for further long period, because it will become useless with the passage of time. It is next submitted that charge-sheet has been filed, no further enquiry is necessary in respect of criminal case, and as such, vehicle in question should have been released in favour of petitioner.

On the other hand, learned counsel appearing for the State opposes the prayer made by learned counsel for the petitioner.

Perused the order dated 25.11.2021, passed by the Collector, Durg. As per impugned order, application filed by petitioner has been dismissed only on the ground that vehicle in question was being used for transportation of illicit liquor, therefore, it is not justified to hand over the possession of the vehicle in question. In the result, the application for interim custody was dismissed.

The confiscation proceeding under the Act is governed by Section 47-A(3) of the Act. Section 47-A(2) of the Act regulates the power and procedure to be adopted for confiscation which reads as under:

“47-A(2) When the Collector, upon production before him of intoxicants, articles, implements, utensils, materials, conveyance etc. or on receipt of a report about such seizure as the case may be, is satisfied that an offence covered by clause (a) orclause (b) of sub -section (1) of Section 34 has been committed and where the quantity of liquor found at the time or in the course of detection of such offence exceeds five bulk liters he may, on the ground to be recorded in writing, order the confiscation of the intoxicants, articles, implements, utensils, materials, conveyance etc. so seized. He may, during the pendency of the proceedings for such confiscation also pass an order of (sic or) interim nature for the custody, disposal etc. of the confiscated intoxicants, articles, implements, utensils, materials, conveyance etc. as may appear to him to be necessary in the circumstances of the case.”

Perusal of sub-section (2) would show that power has been given to the District Magistrate (Collector) upon production of the article and on having satisfied that offence covered under clause (a) or clause (b) of sub-section (1) of Section 34 of the Act, has been committed and if liquor is more than 5 bulk liters, he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. It also records that during pendency of the proceeding, he may pass an order of interim nature for custody, disposal etc. of the confiscated intoxicants, articles, implements, conveyance as may appear to be necessary in the facts of this case.

Section 47-B of the Act provides for appeal against the order of confiscation. Therefore, it necessarily leads that order of confiscation can only be challenged when it reaches its finality and the statute do not give any space to challenge any other order except the final one. In view of this, the necessary implication would be that any order of interim nature if any passed, the High Court in exercise of it's power vested in it under Article 227 of the Constitution of India can always test the propriety or legality of the order. It is a settled proposition of jurisprudence that every wrong will have a remedy. So if the order is found to be wrong, then certainly the High Court would have all the power to correct the same.

The order dated 25.11.2021, which is under challenge would show that no appropriate reason has been assigned for rejection of petitioner's application. The reason mentioned in the impugned order that the vehicle in question was being used for transportation of illicit liquor, cannot be held justified ground for not handing over the vehicle in question in temporary custody of the petitioner. As it is said that the vehicle in question is standing since 11.8.2021, in an open place in the Police Station, further lingering it stationed will prone to cause natural decay and the vehicle in question may loose its road worthiness. In the light of the principle laid down by the Hon’ble Supreme Court in the case of General Insurance Council and others Vs. State of Andhra Pradesh and others reported in (2010) 6 SCC 768, wherein the earlier principle laid down in the case of Sunderbhai Ambalal Desai (Supra) was reiterated, the order of rejection of interim custody cannot be allowed to remain. Consequently, applying the said principle, it is directed that the vehicle in question be released in favour of petitioner by way of interim measure, if the confiscation proceedings have not been concluded till date of production of this order.

Therefore, the vehicle in question is directed to be released to the petitioner on the following conditions:-

• Petitioner shall satisfy that he is registered owner of the vehicle in question.

• Before release of vehicle in question proper panchnama be prepared.

• Photographs of vehicle in question be taken and bond should also be produced that the article would be produced if required at the time of trial or confiscation.

• Proper security and personal bond of the owner, amounting to present value of like vehicle in question, be obtained before release of vehicle.

In view of foregoing discussions, the petition succeeds and is allowed. No order as to cost(s).